The Mayor and City Council (MYCC) yesterday lost a bid to prevent the High Court from reviewing its controversial parking meter contract with Smart City Solutions (SCS) after Justice Brassington Reynolds ruled that the court does have the jurisdiction to hear the case.
“This court has the jurisdiction to hear and determine such matters, especially those in the interest of the public, such as the one before the court,” Justice Reynolds declared at a hearing yesterday, while overruling submissions made by M&CC attorney Roger Yearwood.
Referring to legal precedent and other authorities, he also said that there can be no doubt that the court has jurisdiction to grant the prerogative orders of certiorari and prohibition sought by the applicant, Mohendra Arjune, a conveyancing clerk attached to the Cameron and Shepherd law firm, to prohibit contractor SCS from administering the metered parking system in the city.
The judge said that he will deliver his ruling on the requests for the orders on Monday.
Yearwood has argued that those nisi orders fall outside the ambit of civil proceedings, which the court, in its civil capacity, had no jurisdiction to hear.
He had submitted that Arjune’s application was made by the wrong procedure, which contravened the new civil procedure rules.
Arguing firmly that the court did have jurisdiction, however, Arjune’s lawyer, Kamal Ramkarran, had said that to adopt Yearwood’s reasoning would mean that someone could not bring the administrative decision of an administrative body exercising a public law function to the court to question, under judicial review, what that body is doing. He contended that the court has the power to hear the matter because the common law has not changed.
He noted further that the court always has the power to examine the legality of decisions to correct injustices, while adding that in this case, the parking meter project has created an injustice.
In his ruling yesterday, the judge noted that the orders have become known for providing relief to ordinary citizens from injustices of administrative bodies. He also pointed out that decisions in the case have implications for all citizens owning, driving or being transported in vehicles. He said that it is the “substance,” therefore, in the new civil procedure rules “which must trump procedure.”
After noting that the court has jurisdiction, and will continue to hear the case, Justice Reynolds ordered Yearwood to have his affidavit in defence filed by March 17.
Power to grant orders
Meanwhile, the court yesterday heard arguments from both sides regarding Ramkarran’s application for the interim orders to be granted, pending the determination of the case.
Ramkarran had asked the court to order SCS, which operates under the auspices of the M&CC, to stop imposing charges on drivers who do not pay parking fees in metered zones. He also asked that SCS desist from clamping those vehicles, and stop imposing all other sanctions associated with the recently implemented parking meter project.
Yearwood argued that notwithstanding the court’s ruling on jurisdiction, it has no power to grant the interim orders being sought by Ramkarran, as this can be done only under and by way of the Judicial Review Act, which has not yet come into force. It is only through this procedure, Yearwood contended, that the court would be equipped to grant such orders.
Attorney Stephen Fraser, who represents SCS, also argued that the common law, in relation to the prerogative writs, would operate to stay court proceedings and not the executive aspect of the functions of SCS executing the parking meter project.
Ramkarran said that the stay of proceedings to which he is referring, in the context of this case, deals with the operationalizing of the contract for SCS to be prohibited from enforcing all functions related with the parking project.
The attorneys were ordered to lay over their written submissions to the court as relates the interlocutory orders by this morning. The judge will then hand down his ruling next Monday.
Yearwood and Fraser offered to give an undertaking for Arjune not to be subjected to any of SCS’s enforcement measures associated with the parking meter project. This prompted the judge to enquire whether the project is not one which affects the wider Guyanese society and not Arjune only. Fraser, however, pointed out that the application before the court, which the judge must bear in mind, names only one applicant—Arjune—and that they are willing to facilitate him regarding his specific claims of hardships.
In an affidavit supporting his application, Arjune noted that the parking fees of approximately $37,120 have been “extremely onerous” to him. He further noted that media reports on February 13 stated that the M&CC and SCS had “arbitrarily and without seeking any input from me or other persons affected by the parking fees, reduced the parking fees to about $112 an hour,” a sum which he said was still onerous.
Additionally, Arjune said he was fearful that they will “arbitrarily raise those fees again as soon as public protesting against the parking meters have stopped,” before arguing that if the contract itself was illegal, he should not be subject to any charges.
Arjune’s application for judicial review is based on the contention that the city failed to comply with the law in entering the contract. Ramkarran has argued that the M&CC failed to comply with mandatory prerequisites set out in Sections 230 and 231 of the Municipal and District Councils Act. Section 231 of the Act states that before entering into any contract for the execution of any work or the supply of any goods to the value of $250,000 or more, a council is required to give notice of such proposed contract and “shall by such notice invite any person willing to undertake the same to submit a sealed tender thereof to the council….” The project was not publicly tendered, which has been one of the bases upon which it has been criticized.
Ramkarran also contends that by entering into the May 13, 2016 contract, M&CC unlawfully and in an ultra vires manner delegated its statutorily derived power to erect and maintain parking meters under and in terms of Section 276(b) of the Act and acted contrary to Section 21 of the Civil Law Act of Guyana, which prohibits the establishment of monopolies in Guyana.
He also argued that the decision by the M&CC and SCS to exempt teachers and employees of the Bank of Guyana from charges was arbitrary, discriminatory and contrary to the operation of the rule of law.
